[2008] KEHC 3030 (KLR)
The court found that while the offence was serious and involved excessive force resulting in grave injury to the complainant, the eight-year sentence imposed by the trial court was excessive given the appellant's status as a first offender and the circumstances leading to the offence. The appellate court held that a...
Source-derived case information.
- Citation
- [2008] KEHC 3030 (KLR)
- Parties
- Appellant: Hussein Bulle Noor; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 736 of 2006
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- sentence reduced on appeal
- Legal Topics
- Sentencing Principles, Grievous Harm, Mitigation, First Offender, Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hussein Bulle Noor
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the eight-year custodial sentence for grievous harm was excessive in the circumstances.
- 2 Whether the trial court failed to consider the appellant's status as a first offender and mitigating factors.
Ratio Decidendi
The court found that while the offence was serious and involved excessive force resulting in grave injury to the complainant, the eight-year sentence imposed by the trial court was excessive given the appellant's status as a first offender and the circumstances leading to the offence. The appellate court held that a custodial sentence was still warranted to serve the interests of justice and deterrence, but a reduction to five years would adequately balance punishment and rehabilitation. The court thus reduced the sentence from eight years to five years' imprisonment, to run from the date of the original sentence.
Court Disposition
sentence reduced on appeal
Orders
- The appellant's sentence is reduced from eight years to five years' imprisonment.
- The sentence shall run from the date of the original sentence.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Ciminal Appeal 736 of 2006
(Being an appeal against sentence in Criminal Case 54 of 2006 SRM Mandera, Hon. R.K. Mibei)
HUSSEIN BULLE NOOR…………………...…………….. APPELLANT
V E R S U S
REPUBLIC ………………………………………………..RESPONDENT
J U D G E M E N T
Hussein Bulle Noor (herein referred to as the appellant) was charged with the offence of grievous harm contrary to section 234 of the Penal Code that on 19th day of February, 2006 at around 10. 00 am at Bulla Jamhuria location of Mandera District, within the North-Eastern province, unlawfully did grievous harm to Farah Mohammed Ali. The appellant pleaded not guilty and the matter proceeded to hearing and upon conclusion of the case, the appellant was convicted as charged and sentenced to serve a prison terms of 8 (eight) years. In his amended grounds of appeal, appellant stated that he was only appealing against sentence and stated that, the learned trial magistrate sentenced him without considering that he was a first offender. He prays that the sentence be reduced or substituted with a non-custodial sentence.
The learned State Counsel Mrs Obuo, opposed the appeal on sentence, saying the offence carries a maximum sentence of life imprisonment and considering the serious nature of the injuries complainant sustained, then 8 (years) was not excessive. Appellant argues that although the offence is a serious one, it does not require a long term of imprisonment for the offender to rehabilitate. I think sentencing has a dual role, both to punish and rehabilitate. Appellant terms the eight year sentence as harsh saying the circumstances resulting in the offence were due to temper and uncontrollable situation. Appellant alludes to a spiritual transformation he claims to have undergone while in prison. He complains of ill health saying he is a victim of tuberculosis (TB) and has not yet received good treatment. The appellant prays that the jail term be reduced or substituted to a non-custodial one.
In considering whether the sentence is harsh, I must look at the background leading to passing of the imprisonment term. The appellant and complainant had an exchange of words over the sale of Miraa (Khat), Appellant got hold of complainant by the shirt collar, complainant pushed him away. Appellant picked a huge knife and stabbed the complainant who was seated. He stabbed complainant on the left side of the stomach and left him. Complainant bled profusely and lost consciousness. The four had been previously working together and even sleeping together. The injury was so bad, that the complainant’s intestines were protruding. The complainant’s abdomen had a lot of blood and the intestines were perforated. The complainant underwent surgery and the perforated intestines were cut.
The appellant had nothing to say in mitigation and this led to the learned trial magistrate remaking this-
“The accused person is not even remorseful for what he did…… He deserves no mercy.”
Are there any circumstances that would warrant interfering with the sentence? The incident stems from a moment of anger but resulting in appellant using unwarranted excessive force to inflict injury on the complainant. Appellant acknowledges that it was his inability to control his temper which degenerated to the situation he finds himself in. I think a non custodial sentence which he pleads for would to my mind be a mockery of the justice system – one must be punished for his misdeed even though at the same time be given a chance to rehabilitate. Under the circumstances then, I think that a five year sentence would serve both purposes and consequently I reduce the eight year prison term imposed by the trial court to a five year prison terms.
This sentence to run from the date of the original sentence.
Dated, delivered and signed at Nairobi this 14th day of April, 2008.
H.A. Omondi
Judge